Supreme Court Offers Common Sense Guidance on What Constitutes "Changing Clothes" Under the FLSA

Wage Hour Report

When the nine justices of the Supreme Court
received their lifetime appointments to the nation's highest court, they
probably did not envision themselves digging through 60-year-old dictionaries
for definitions of prosaic terms like "clothes" and "clothes changing," and
comparing those terms to "spending the day skiing." Yet, the Justices found
themselves doing just that in Sandifer v. U.S. Steel Corp. in order to give
some practical advice to employers.

The case concerns Section 203(o) of the
Fair Labor Standards Act, added to the statute in 1949. That Section provides
that "time spent in changing clothes or washing at the beginning or end of each
workday" could be excluded from compensable work time by the
express terms of a collective-bargaining agreement. Since 1949, courts,
employers, and employees have struggled with the term "changing clothes" in
determining which "donning and doffing" time was excludable under Section
203(o). Much of the litigation has centered on whether work-related protective
gear qualifies as "clothes."

Sandifer was brought by employees
of a U.S. Steel plant in northern Indiana who sought back pay for the time they
spent doffing and donning 12 pieces of clothing and protective gear: a
flame-retardant jacket, a pair of pants, a hood, a hard hat, a "snood,"
"wristlets," work gloves, leggings, "metatarsal" boots, safety glasses,
earplugs, and a respirator. The collective bargaining agreement between U.S.
Steel and the union representing the employee-plaintiffs stated that the time
spent "changing clothes" was not compensable. The validity of that contract
provision depends upon whether the items in question are considered "clothing"
under Section 203(o). The Court's nearly-unanimous decision is summarized
below.

What did Congress mean by "clothes"
in Section 203(o)?

The plaintiffs argued that items used to
protect against workplace hazards could not be "clothes," but the Court
disagreed: "We see no basis for the proposition that the unmodified term
'clothes' somehow omits protective clothing." The Court also discarded U.S.
Steel's contention that "clothes encompasses the entire outfit that one puts on
to be ready for work," holding instead that accessories and tools worn on the
body are not "clothes." The Court looked to dictionaries from 1933 and 1950 to
determine that the term "clothes" "denotes items that are both designed
and used to cover the body and are commonly regarded as articles of
dress." (Emphasis added.)

What did Congress mean by "clothes changing" in Section 203(o)?

The plaintiffs asserted that "changing"
connoted "substitution" of one item for another rather than merely putting
something on without taking anything off. For example, the plaintiffs argued,
one would not normally say he "changed clothes" when he "put on" an overcoat.
The Court agreed that the normal meaning of "changing clothes" connotes
substitution, but found that Section 203(o) was not that restrictive, finding
instead that the statute included "time spent in altering dress."
(Emphasis added.)

Applying the definitions of
"clothes" and "changing"

The Court applied its new definitions to
hold that nine of the 12 items at the U.S. Steel plant were "clothes" because
"they are both designed and used to cover the body and are commonly regarded as
articles of dress." The Court wrote,

A flame-retardant jacket, a pair of pants,
a hood and work gloves – obvious clothes
Hard hat – simply a type of
hat
Snood – basically a hood that covers the
neck and upper shoulder area
Wristlets – essentially detached shirt
sleeves
Leggings – look much like traditional legwarmers, but with
straps
Metatarsal boots – just a special kind of shoe

The Court than held that safety glasses and
earplugs "may have a covering function . . . [but] they are not commonly
referred to as articles of dress. And a respirator obviously falls short on both
grounds."

What if the time spent "changing
clothes" is intertwined with time spent putting on gear that is not covered by
Section 203(o)?

Because safety glasses and earplugs did not
meet the Court's definition of "clothes," the last challenge before the Court
was to decide whether the time spent in these activities must be deducted from
non-compensable time. (The respirators were dealt with separately, as discussed
below.) If so, "federal judges must be assigned the task of separating the
minutes spent clothes-changing and washing from the minutes devoted to other
activities during the period in question," a daunting if not impossible task.

The Court then considered whether the de minimis doctrine could be applied to the donning and doffing of
safety glasses and earplugs. (Under the de minimis doctrine, "a few
seconds or minutes of work beyond the scheduled working hours [may be]
disregarded.") The Court found that the part of the statute that is at issue in
this case – Section 203(o) – concerned those "trifling" periods of time in which
employees washed up or put on various items of clothing needed for their jobs.
"There is no more reason to disregard the minute or so necessary to put
on glasses, earplugs, and respirators than there is to regard the
minute or so necessary to put on a snood." (Emphasis in original.) So, the Court
concluded that de minimis did not work here.

Despite the fact that the Court would not
disregard the small amount of time taken to put on glasses and earplugs, it did
not find that time to be compensable. Hoping to remove federal judges from the
minutiae of time studies and the "morass of difficult, fact-specific
determinations," the Court spoke of a new way of looking at such time:

Just as one can speak of "spending the day
skiing" even when less-than-negligible portions of the day are spent having
lunch or drinking hot toddies, so also one can speak of "time spent changing
clothes and washing" when the vast preponderance of the period in question is
devoted to those activities. ...The question for courts is whether the
period at issue can, on the whole, be fairly characterized as "time
spent in changing clothes or washing." If an employee devotes the vast
majority of the time in question to putting on and off equipment or other
non-clothes items (perhaps a diver's suit and tank) the entire period would not
qualify as "time spent in changing clothes" under Section 203(o), even if some
clothes items were donned and doffed as well. But if the vast majority of the
time is spent in donning and doffing "clothes" as we have defined that term, the
entire period qualifies, and the time spent putting on and off other items need
not be subtracted.

(Bold emphasis added; italics in
original.)

The Court noted that the District Court had
found that the time spent by each employee donning and doffing safety glasses
and earplugs "[was] minimal," and that the U.S. Court of Appeals for the Seventh
Circuit (which hears appeals from federal courts in Illinois, Indiana, and
Wisconsin) had agreed. The District Court had found that the respirators were
put on as needed at job locations, which meant that the plaintiffs were already
on the clock when they donned and doffed respirators, making the time spent
outside the scope of Section 203(c).

Analysis

It will be interesting to see whether the
Court's decision in Sandifer actually does provide clarity as to the
meaning of the term "clothes." Also, the Court's new standard for determining
compensable time when both compensable and non-compensable acts are intertwined
will be challenging for the courts to apply: "The question for courts is whether
the period at issue can, on the whole, be fairly characterized as 'time
spent in changing clothes or washing.'" (Emphasis in original.)

It is encouraging to note that the Court
was united on this issue, meaning that the decision is likely to stand even as
the makeup of the Court changes in the future. (The opinion was written by
Justice Antonin Scalia and joined by all justices, except that Justice Sonia
Sotomayor declined to join in footnote 7 of the opinion, which said that
definitions in Section 203 of the Act do not have to be construed
narrowly.)

If you want to discuss the compensability
of donning and doffing time or any other wage and hour issue, please contact any
member of Constangy's Wage and Hour Practice Group, or the Constangy
attorney of your choice.

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